Filed 10/21/26 P. v. Stancil CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, A170563
v. (Alameda County Super. Ct.
AVERY STANCIL, No. 23CR001173)
Defendant and Appellant.
A jury found defendant Avery Stancil guilty of intercourse or sodomy
with a child 10 years of age or younger. On appeal, Stancil contends that: (1)
the trial court erroneously denied his objection to the prosecutor’s peremptory
challenge of a Black prospective alternate juror; (2) the trial court erred when
it found a witness unavailable and permitted her preliminary hearing
testimony to be read into the record; and (3) the trial court erred when it
refused to qualify a defense witness as an expert so he could tell the jury
about studies he had read on plea bargaining. We affirm.
BACKGROUND
In February 2023, Stancil was charged by information with intercourse
or sodomy with a child 10 years of age or younger (Pen. Code, § 288.7, subd.
(a)).
1
Stancil was tried before a jury. The victim, Jane Doe, testified, and the
trial court permitted counsel to read the preliminary hearing testimony of
Anne Doe, the victim in a prior case in which Stancil had pleaded no contest
to sexual battery. Stancil testified in his defense. Stancil denied that he
committed the charged crime and denied he committed the crime against
Anne Doe that he entered the plea to.
The jury found Stancil guilty. Stancil was sentenced to 50 years to life
in prison.
DISCUSSION
A. Peremptory Challenge
1. Introduction
In 2020, the Legislature enacted Code of Civil Procedure1 section 231.7
in response to concerns about whether the Batson/Wheeler framework2 was
adequate to identify and curb improper discrimination. (People v. SanMiguel
(2026) 20 Cal.5th 254, 268, 271 (SanMiguel).) Under section 231.7, if another
party or the trial court objects to the use of a peremptory challenge, then “the
party exercising the peremptory challenge shall state the reasons the
peremptory challenge has been exercised.” (§ 231.7, subds. (b)–(c).) The trial
court must “evaluate the reasons given . . . in light of the totality of the
circumstances” and “explain the reasons for its ruling on the record” (§ 231.7,
subd. (d)(1)), and “[a]ppellate courts . . . must give scrupulous consideration
to the records before them to determine whether, considering all relevant
1 Undesignated statutory references are to the Code of Civil Procedure.
2 This refers to the procedural framework for determining whether a
litigant’s decision to peremptorily challenge a prospective juror was
motivated by improper bias set forth in People v. Wheeler (1978) 22 Cal.3d
258, and Batson v. Kentucky (1986) 476 U.S. 79.
2
circumstances, the proceedings failed to satisfy the principle of equal
treatment embodied in section 231.7.” (SanMiguel, supra, 20 Cal.5th at p.
291.)
This case involves a Black defendant, a Black victim, another Black
victim in a prior case, other Black witnesses, and a Black prospective
alternate juror. The prospective jurors filled out lengthy questionnaires, and,
on the third day of voir dire, 12 jurors were selected. During the selection of
alternate jurors, the prosecutor used a peremptory challenge on Ms. Wilson-
Rosa, a 66-year-old woman who identified as African American, and defense
counsel objected that the peremptory challenge violated section 231.7. The
prosecutor stated his reasons, including his “largest concern,” which was that
Ms. Wilson-Rosa “was the only [prospective juror] who did not understand
why a prior allegation or conviction for sexual assault would be relevant in a
case involving sexual assault particularly on a child.”3 The trial court
considered the “totality of all of the circumstances” and found that Ms.
Wilson-Rosa was not peremptorily challenged for an improper reason. After
“scrupulous consideration” of the records before us and all relevant
circumstances, we affirm the trial court’s overruling of the objection.
(SanMiguel, supra, 20 Cal.5th at pp. 290-291.)
2. Applicable Law and Standard of Review
Section 231.7 prohibits the use of a peremptory challenge to “remove a
prospective juror on the basis of the prospective juror’s race, ethnicity,
gender, gender identity, sexual orientation, national origin, or religious
affiliation, or the perceived membership of the prospective juror in any of
those groups.” (§ 231.7, subd. (a).) The question is whether “there is a
3 We have omitted capitalization from our quotations of the transcript.
3
substantial likelihood that an objectively reasonable person would view race
[or other protected status] . . . as a factor in the use of the peremptory
challenge.” (§ 231.7, subd. (d)(1).)4 If so, the trial court must sustain the
objection. (§ 231.7, subd. (d)(1).)5
Section 231.7, subdivision (d)(3), lists some of the circumstances that
the trial court may consider in making its determination.6
Section 231.7 “sets out two categories of reasons that . . . are treated as
presumptively invalid unless certain conditions are met.” (SanMiguel, supra,
20 Cal.5th at p. 273.) The first category includes “[a]ny justification that is
similarly applicable to a questioned prospective juror or jurors, who are not
members of the same cognizable group as the challenged prospective juror,
4 An “objectively reasonable person” is one who is “aware that
unconscious bias, in addition to purposeful discrimination, have resulted in
the unfair exclusion of potential jurors in the State of California.” (§ 231.7,
subd. (d)(2)(A).)
5 In ruling on the objection, the trial court may “not speculate on, or
assume the existence of, other possible justifications for the use of the
peremptory challenge.” (§ 231.7, subd. (d)(1).)
6 These include whether the “objecting party is a member of the same
perceived cognizable group as the challenged juror” (§ 231.7, subd.
(d)(3)(A)(i)); whether the “alleged victim is not a member of that perceived
cognizable group” (§ 231.7, subd. (d)(3)(A)(ii)); whether “[w]itnesses . . . are
not members of that perceived cognizable group” (§ 231.7, subd. (d)(3)(A)(iii));
“whether the party exercising the peremptory challenge failed to question the
prospective juror about the concerns later stated by the party as the reason
for the peremptory challenge” (§ 231.7, subd. (d)(3)(C)(i)); whether “the party
exercising the peremptory challenge engaged in cursory questioning of the
challenged potential juror” (§ 231.7, subd. (d)(3)(C)(ii)); and whether “the
reason given by the party exercising the peremptory challenge was contrary
to or unsupported by the record” (§ 231.7, subd. (d)(3)(F)).
4
but were not the subject of a peremptory challenge by that party.” (§ 231.7,
subd. (e)(13).)7
The second category includes reasons that have “historically been
associated with improper discrimination in jury selection,” including “a lack
of rapport or problematic attitude, body language, or demeanor.” (§ 231.7,
subd. (g)(1)(B).) Subdivision (g)(2) provides that such reasons “are
presumptively invalid unless the trial court is able to confirm that the
asserted behavior occurred, based on the court’s own observations or the
observations of counsel for the objecting party. Even with that confirmation,
the counsel offering the reason shall explain why the asserted demeanor,
behavior, or manner in which the prospective juror answered questions
matters to the case to be tried.” (§ 231.7, subd. (g)(2).)
“While reliance on an invalid reason is generally a significant
consideration—and, depending on the circumstances, may prove dispositive—
a court still must consider any other reasons proffered and other relevant
circumstances to determine whether the strike was unlawful under section
231.7.” (SanMiguel, supra, 20 Cal.5th at p. 269.) Conversely, “[a] court may
conclude that a . . . reason is valid and yet determine, after weighing other
reasons and relevant circumstances, that an objective observer would still
likely conclude that race or other protected status was a factor in the
peremptory challenge.” (SanMiguel, supra, 20 Cal.5th at pp. 269-270.)
7 A peremptory change for such a reason “is presumed to be invalid
unless the party exercising the peremptory challenge can show by clear and
convincing evidence that an objectively reasonable person would view the
rationale as unrelated to a prospective juror’s race . . . [or other protected
status], and that the reasons articulated bear on the prospective juror's
ability to be fair and impartial in the case.” (§ 231.7, subd. (e).)
5
A “denial” of a section 231.7 objection “shall be reviewed by the
appellate court de novo, with the trial court’s express factual findings
reviewed for substantial evidence.” (§ 231.7, subd. (j).) “The appellate court
shall not impute to the trial court any findings, including findings of a
prospective juror’s demeanor, that the trial court did not expressly state on
the record,” and it “shall not speculate as to or consider reasons that were not
given to explain either the party’s use of the peremptory challenge or the
party’s failure to challenge similarly situated jurors who are not members of
the same cognizable group as the challenged juror.” (Ibid.) “Should the
appellate court determine that the objection was erroneously denied, that
error shall be deemed prejudicial, the judgment shall be reversed, and the
case remanded for a new trial.” (Ibid.)
3. Procedural Background
In connection with jury selection, prospective jurors filled out jury
questionnaires containing 70 questions. During voir dire, one of Stancil’s
attorneys disclosed to the prospective jurors that Stancil had been previously
accused of a sexual crime. She stated: “[Y]ou are going to hear evidence that
18 years ago Mr. Stancill [sic] was accused in a similar case. He was accused
of making an 11-year-old girl touch his penis. And you’re going to hear that
he pled guilty to a lesser related offense.”8
8 The trial court told the prospective jurors that “there are certain
limitations in terms of how . . . evidence [of a prior sexual offense] can be
used” and read the jury instruction that the trial court would read at the end
of trial. The trial court stated: “The People have presented evidence that the
defendant has committed this prior sexual crime. . . . [¶] You may consider
this evidence only if the people have proved by a preponderance of the
evidence that the defendant, in fact, committed the uncharged offense.
[¶] . . . [¶] . . . [I]f you decide that the defendant committed the uncharged
offense, you may, but are not required, to [co]nclude from that evidence that
6
After 12 jurors were selected, the parties questioned prospective
alternate jurors, including Ms. Wilson-Rosa. The prosecutor noted that Ms.
Wilson-Rosa had “heard a lot of the things [they] [had] talked about so far”
and asked if there was “anything [she] had strong feelings about one way or
the other as [she] [was] listening in the audience.” Ms. Wilson-Rosa replied,
“No.” The prosecutor asked if Ms. Wilson-Rosa had any issue with “the idea a
finding of guilt beyond a reasonable doubt could be based on the testimony of
just one witness.” Ms. Wilson-Rosa replied, “No.” The prosecutor noted that
Ms. Wilson-Rosa shared in her questionnaire that she “sort of didn’t have any
strong feelings about the criminal justice system or about how sexual assault
crimes are treated in the criminal justice system,” and asked, “As you’ve been
sitting here listening to this discussion, has anything stood out to you as
maybe being particularly interesting or something that you didn’t think
about before that you thought would work differently?” Ms. Wilson-Rosa
replied, “No.” The prosecutor asked, “Is there any question in your mind as
to whether you’d be able to evaluate the credibility of a child and determine
whether that or all of the evidence proves this case beyond a reasonable
doubt because of the allegations?” Ms. Wilson-Rosa replied, “No.”
One of Stancil’s defense attorneys noted that, in her questionnaire, Ms.
Wilson-Rosa “indicated . . . [she] didn’t think kids would lie about an
the defendant was disposed or inclined to commit sexual offenses. And based
on that decision, also conclude that the defendant was likely to commit and
did commit the charged offense in this case. [¶] If you conclude that the
defendant committed the uncharged offense, that conclusion is only one factor
to consider along with all of the other evidence. It is not sufficient by itself to
prove that the defendant is guilty of the offense charged in this case. [¶] . . .
Do not consider this evidence for any other purpose except the limited
purpose of determining credibility.”
7
allegation like this” and asked, “Can you tell us a little bit more how you feel
about that?” Ms. Wilson-Rosa replied, “Not really.” Defense counsel noted
that “several other potential jurors [said], I don’t think an adolescent or a
child would make up a lie about something like a rape or sexual assault,” and
asked, “[I]s that how you feel based on how you answered your questions?”
Ms. Wilson-Rosa replied, “No. I think they will lie. Yeah. I think they will.”
Defense counsel asked, “If [a witness] . . . who’s a . . . minor . . . says . . . I was
attacked, or assaulted, or raped, you’re not going to automatically believe her
just because she’s young, correct?” Ms. Wilson-Rosa replied, “Exactly.”
Defense counsel asked: “Is there anything else about the things . . . that
you’ve heard so far that . . . brought anything to mind?” Ms. Wilson-Rosa
replied, “No.”9
Stancil’s other defense attorney also questioned Ms. Wilson-Rosa.
Among other things, she asked, “[H]ow do you feel about the idea once
somebody has been accused of something, they may be more likely to be
pigeonholed?” Ms. Wilson-Rosa replied: “I don’t feel the same. I don’t have
no comments or anything like that.” Defense counsel asked, “Do you feel like
. . . you would want to hear evidence of the prior to be able to make a
determination about whether, in fact, it had happened, whether the district
attorney had met his burden that it was more likely than not?” Ms. Wilson-
Rosa replied, “No.” Defense counsel asked, “You would not want to hear that
evidence?” Ms. Wilson-Rosa replied: “I have issues with that. I don’t—it’s—
past is the past, so I don’t think—not involved with the case that’s coming up.
I don’t—I mean what difference would it make?” Defense counsel stated that
9 Defense counsel also asked some questions about possible testimony
by Stancil.
8
the “judge will read you an instruction that if the district attorney proves
that the prior incident occurred by a preponderance of the evidence . . . you
can use that as one factor in determining whether this case occurred,” and
asked, “[W]ould you be able to follow that law?” Ms. Wilson-Rosa replied, “I
think so.”
a. Peremptory Challenge, Objection, and Stated Reasons
The prosecutor exercised a peremptory challenge on Ms. Wilson-Rosa,
and defense counsel objected that the challenge violated section 231.7.
Defense counsel noted, “She’s Black. We only had five Black jurors . . . in the
90-some people that we had available.” Defense counsel stated: “I have
objected. It’s now for [the prosecutor] to state on the record the reasons for
his peremptory challenge.”
1. The Prosecutor’s Stated Reasons
The prosecutor gave his reasons for using a peremptory challenge to
remove Ms. Wilson-Rosa. He “start[ed] with the questionnaire.” He stated:
“In reviewing Ms. [Wilson-Rosa’s] questionnaire, I saw that she did not
indicate any thoughts or feelings one way, or another about criminal justice
system or about sexual assault, or how sexual assault is handled in the
criminal justice system, which . . . as the record will make clear, is unusual in
this panel, not unique but unusual. And that . . . made her answers in court
more important to my evaluation of whether I felt she would be a juror that I
would be comfortable with hearing this case.” He further stated: “Also in my
experience, the reason that that’s important is[,] as I’ve tried numerous
sexual assault cases, I’ve seen that it’s helpful to have jurors who have some
understanding or life experience about sexual assault or how it is handled in
the criminal justice system because these cases are unique in many ways.
9
And the consideration that jurors make in these cases is unique in many
ways to sexual assault for many reasons.”
The prosecutor next stated: “In court, . . . [Ms. Wilson-Rosa] did not
express any thoughts or feelings at all when she was questioned by me[;] I
also found this unusual in this group and also in my experience. Most jurors,
after sitting through this much discussion about sexual assault or this type of
case would at least have some thoughts, or questions, or feelings about the
topics that we have discussed. That was unusual and it indicated to me a
lack of emotional involvement or sort of a lack of engagement with the
questioning, which I also considered to be essential for an ideal juror in a case
like this. I want a juror who’s engaged and thinking about these topics. And
given all the complex legal areas and social areas we have discussed, I also
found that unusual, the sort of lack of any thoughts, or ideas, or feelings
about any of the very controversial topics we have discussed.” The prosecutor
noted: “After the questioning, I didn’t really have my mind made up one way
or another. And I think it was primarily when the defense started
questioning the juror that my concern sort of became more serious.”
The prosecutor next stated: “[Ms. Wilson-Rosa] wrote in her
questionnaire that she did not believe kids lie about allegations of sexual
assault or rape. She was asked to explain in her questionnaire, but she did
not. And I think I asked her about that. . . . [B]ut she didn’t indicate any
thoughts or concerns about that issue until she was asked about it by defense
counsel. When she was asked about it by defense counsel, she, I think, very
quickly switched her answer to, no, I think they would. And I think she
repeated a couple times they would. . . . My hearing of her answer is when
asked whether a child would lie by defense counsel, she said they would and
then repeated that at least once or twice. [¶] That indicated to me that this
10
juror could or would be swayed by defense counsel if she was a seated juror in
this case. It indicates a lack of conviction in her beliefs about children and
about whether a child would make up something like this which, of course, is
the essential issue for this case.”
The prosecutor next stated: “In defense counsel’s questioning, . . . [Ms.
Wilson-Rosa] also indicated she didn’t have much experience with kids . . . .
[M]y tak[e] away from that was that she didn’t have much experience . . .
judging their credibility and didn’t know how that would play out in this case.
I found that unusual considering she does have a daughter, albeit her
daughter is older. [¶] I also have found, in trying sexual assault cases, that it
is helpful to have jurors who have had or currently have close relationships
with children. That indicated to me that this juror did not or did not believe
she did. It would be harder for someone who didn’t have experience with
children or identified as not having close experience with children to judge
the credibility of a child, . . . which again is the biggest factor in this case.”
The prosecutor next stated: “But I think the largest concern that I had
about this juror was her response to the questions by defense counsel about
the possibility of a prior allegation. Up until that question, this juror seemed
fairly calm, did not express any emotion or strong feelings, or any feelings
really about anything. And as soon as defense counsel asked about the prior
allegation, this juror became more animated than she had been during any
other questions and more vocal, and said that she was very confused about
why that was coming up, and that it happened back then. Why are we even
dealing with it now? Why are we hearing about it now?” The prosecutor
further stated: “That was concerning to me for number reasons. One, the
court spent a fair amount of time explaining the law in this area and how this
evidence could be used and why we were talking about it. I spent quite a bit
11
of time as did defense counsel talking about this issue. I think her reaction to
that information was unique. I think out of all of the other jurors who were
questioned about this, she was the only one who did not understand why a
prior allegation or conviction for sexual assault would be relevant in a case
involving sexual assault particularly on a child. That was incredibly
concerning to me, having worked in this area for a long time. This is a big
factor for jurors and also for sexual assault in general. . . . So that initial very
strong appearing [sic] resistance to the idea of why we would even be dealing
with this indicated to me she just doesn’t understand sexual assault,
particularly against children, and that her reaction indicates that she would
be a juror that would be less inclined to believe a victim of sexual assault. It
didn’t even matter to her at all. In fact, she seemed somewhat offended by
the idea of bringing up a prior incident involving sexual assault.”
The prosecutor also stated: “[T]he victim in this case . . . and all of the
primary witnesses are Black. The prior victim in this case [i.e., Anne Doe]
. . . is also Black.”
2. Defense Counsel’s Response
In response to the prosecutor’s “statements that . . . [Ms. Wilson-Rosa]
didn’t have an opinion about the criminal justice system which he found
unusual,” defense counsel stated: that “XXXX XXXXX, who’s . . . seated on
the jury, . . . did not have an opinion about the criminal justice system.”10
Defense counsel also “point[ed] out that XXXXXX XXXXXX, [who is] seated in
the jury wrote ‘no opinion at this time’ . . . when asked about the criminal
justice system.” Defense counsel also stated that he “had no opinion about
10 In the transcript, the first and last names of seated jurors were
obscured with an X for each letter.
12
sexual assault cases” and pointed out that he “identifies as a white man.”
Defense counsel also stated: “XXXXX XXX, who’s seated on the jury wrote, ‘I
don’t know. I have no experience in the matter’ when he was asked how
sexual assault cases were held.” Defense counsel pointed out that he
“identifies as an Asian man.” Defense counsel pointed out that “XXXX XXXX
identifies as an Asian woman” and stated: “[She] . . . just wrote ‘no difference’
when she was asked how sexual assault cases were held. And I can go on.
There’s a number of people on the jury wrote that and the People passed on
all of them.”
Defense counsel stated: “[A]dditionally the next statement, do you
believe a child would lie or make up a charge of rape or assault. He said the
fact that she wrote no, and then changed it to yes showed that she would be
persuaded by defense counsel. A number of people wrote no in their
questionnaires including XXXXX XXX, [who’s] also seated on the jury who
identifies as an Asian man and said that he did not believe. Then I
questioned[] him he changed his answer to, yes, a child could lie. The People
passed on him.” Defense counsel also stated: “XXXXXX XXXXXXXX, who’s
seated on the jur[y] wrote, no, he did not believe a child would lie. He
identifies as a white man, as [does] XXXX XXXXX and then changed it to yes,
a child could lie. The People passed on both of them.”
Defense counsel then stated: “A number of the jurors do not have
children. And again, the People had more than enough peremptories to
excuse those people, but . . . none of those parties were Black women.”
Defense counsel then stated: “[The prosecutor] indicated that [Ms.
Wilson-Rosa] became animated when discussing the prior. I think it would
be more accurate to say she was confused. And a number of jurors were
confused.” Defense counsel also stated: “Mr. XXXXXXX, who’s also seated on
13
the jury, asked can we get the instructions back with us so we can really read
them over?” Defense counsel noted that “in most cases we do not bring priors
in” and stated that Ms. Wilson-Rosa’s “not understanding why a prior would
be relevant” was not “different from any other juror.” Defense counsel stated
that Ms. Wilson-Rosa was “probably in the other courtroom for most of it”
and “may have heard the court reading the instruction” but wouldn’t have
heard questions or answers. Defense counsel stated, “[The prosecutor’s] . . .
statements . . . about her . . . being confused . . . are . . . presumptively invalid
reasons.” Stancil’s counsel asserted that “any reason . . . [the prosecutor has]
given have all applied to other multiple prospective jurors who [the
prosecutor] passed on . . . .”
3. The Prosecutor’s Response
In response, the prosecutor stated that he had not used the words that
defense counsel had “put in [his] mouth.” The prosecutor also stated that the
other jurors’ comments about the prior sexual assault allegation “were
completely different” from those made by Ms. Wilson-Rosa and that a number
of jurors who defense counsel had exercised challenges against had indicated
that evidence of the prior sexual assault allegation “would be so strong that it
would make it difficult for them to be fair in this case.”
b. The Trial Court’s Ruling on the Objection
The trial court stated: “[T]oday is day three. . . . So, we have heard a lot
of jurors. . . . I think Ms. [Wilson-Rosa] is juror number 100 on the list. . . .
[¶] . . . [I]n looking at [section] 231.7 . . ., the court is required to evaluate the
reasons given to justify a peremptory challenge in light of the totality of the
circumstances. And I think talking about the distinctions between several
different jurors that we have talked to over the last two-and-a-half full days,
there are a lot of distinctions in terms of not just one point or the other. We
14
had significant and lengthy conversations with a number of different jurors
about these issues, which is understandable because they’re difficult issues.
[¶] I do think that in looking at the totality of all of the circumstances, I do
not find that there’s a prima facie showing that Ms. [Wilson-Rosa] was
peremptorily challenged for an improper reason, that is, based on her race,
her ethnicity or gender, gender identity, sexual orientation, national origin,
religious affiliation or any perceived membership in a protected group. So . . .
that’s the court’s finding based on the totality of everything. And so, I would
not find that she was dismissed or peremptorily challenged for an improper
reason. So the court is going to make that finding.”
4. Analysis
We begin our inquiry with the reason that the prosecutor identified as
his “largest concern,” which was that Ms. Wilson-Rosa “was the only
[prospective juror] who did not understand why a prior allegation or
conviction for sexual assault would be relevant in a case involving sexual
assault particularly on a child.” Stancil suggests this reason is
presumptively invalid under section 231.7, subdivision (e)(13), because Ms.
Wilson-Rosa’s answers about the prior conviction were similar to those given
by other jurors. We are not persuaded. As we have discussed, under section
231.7, subdivision (e)(13), the presumption of invalidity applies only if the
justification provided by the prosecutor was similarly applicable to other
jurors who were not the subject of a peremptory challenge by the prosecutor.
But the trial court found that “there [were] a lot of distinctions” between the
different jurors. Substantial evidence supports the application of the trial
court’s finding to the jurors referenced by Stancil on this point.
15
“MR. XXXXXXX” (Juror 10)11 was distinguishable because, unlike Ms.
Wilson-Rosa, he was not inclined to ignore a prior conviction. When defense
counsel asked whether Ms. Wilson-Rosa would want to hear evidence of the
prior to be able to make a determination about whether it more likely than
not happened, Ms. Wilson-Rosa answered no and stated: “I have issues with
that. . . . [P]ast is the past, . . . not involved with the case that’s coming up.
. . . I mean what difference would it make?” Juror 10 expressed an opposite
“gut feeling.” He stated: “On some level—it seems to me that a prior
conviction demonstrates a proclivity. And that is in some way a factor in
judging the character of the defendant and plays a role in weighing the
evidence. What role does it have? If I’m instructed to ignore it, I’ll ignore it.
But my gut feeling is it’s not to be ignored. I’m not sure how to deal with
that.” Thus, unlike Ms. Wilson-Rosa, Juror 10 did not express issues with
the relevance of the prior offense; he found it to be relevant (“not to be
ignored”) and sought guidance on the role the prior offense should play in
weighing the evidence.
11 The reporter’s transcript obscures the seated jurors’ names by
referring to them by a sequence of X’s reflecting the number of letters in their
first and last names, while the questionnaire answers are identified by juror
number. We can see that Mr. XXXXXXX is Juror 10 by matching information
in the voir dire testimony of “MR. XXXXXXX” with Juror 10’s questionnaire
answers, including, for example, uniquely identifying information regarding
the juror’s partner’s occupation. Likewise, we can determine which jurors
referred to by X’s correspond to which juror numbers based on identifying
information and corresponding answers to questionnaires and in voir dire. In
his opening appellate brief, Stancil refers to jurors by X’s, while the Attorney
General identifies them by juror number. In his reply, Stancil adopts the
Attorney General’s reference to jurors by number. We provide both the X’s
used by Stancil and the juror number.
16
In addition to Juror 10, Stancil cites five transcript pages and asserts
that “other jurors also expressed questions [about the prior] and MS.
XXXXXXXXX asked for clarification.”12 But the three prospective jurors who
asked questions were all distinguishable from Ms. Wilson-Rosa because, in
the cited pages, none expressed issues with the relevance of the prior offense.
The juror who was then in seat 14 merely asked for a repeat of a question,
and the jurors who were then in seats 13 and 12 asked questions related to
proving the prior offense. Even if their questions reflected some confusion
about the prior offense, they did not disagree with the relevance of the prior
offense, as Ms. Wilson-Rosa had.
Stancil also contends that the presumption of invalidity under section
231.7, subdivision (g), applies because the “prosecutor clearly relied on Ms.
Wilson-Rosa’s demeanor, noting . . . that she became animated when
discussing the prior evidence.” We disagree. As we have noted, under section
231.7, subdivision (g)(1)(B), “a lack of rapport or problematic attitude, body
language, or demeanor” is a presumptively invalid reason for a peremptory
challenge unless certain conditions are met. (Italics added.) While Stancil is
correct that the prosecutor’s statement that Ms. Wilson-Rosa “became more
animated” when defense counsel asked about the prior allegation was based
on Ms. Wilson-Rosa’s behavior, the prosecutor did not say that her animated
behavior was problematic. Rather, the prosecutor’s concern was with her
statements, which set her apart as “the only [prospective juror] who did not
understand why a prior allegation or conviction for sexual assault would be
relevant in a case involving sexual assault particularly on a child.”
12 Stancil’s reference to “MS. XXXXXXXXX” appears to be an error, as
there was no juror by that name.
17
Stancil further contends that the presumption of invalidity under
section 231.7, subdivision (g)(1), applies because the prosecutor noted that
Ms. Wilson-Rosa “seemed to behave as though sexual assault of a child ‘didn’t
even matter to her at all.’ ” (Italics added.) Here, we conclude that section
231.7, subdivision (g)(1), does not apply to the prosecutor’s statement because
it was not behavior-based. As discussed above, when defense counsel asked
about the prior offense, Ms. Wilson-Rosa stated: “I have issues with that. . . .
[P]ast is the past, . . . not involved with the case that’s coming up. . . . I mean
what difference would it make?” The prosecutor was referring to Ms. Wilson-
Rosa’s answer about the prior offense, rather than any observation about her
behavior, when he later said that, “It didn’t even matter to her at all.”
In addition to concluding that the prosecutor’s “largest concern” was
not presumptively invalid under section 231.7, subdivisions (e)(13) or (g)(1),
we further conclude that this reason was valid. A prosecutor who plans to
introduce evidence of a prior offense has a valid reason to want to remove a
prospective juror who expresses issues with the relevance of the prior offense.
It directly bears on the prospective juror’s ability to be fair and impartial in
this case. While our conclusion that the primary reason stated by the
prosecutor was valid is not dispositive of the lawfulness of the prosecutor’s
peremptory challenge, it is a significant consideration in our totality-of-the-
circumstances inquiry.
With that in mind, we have evaluated the other reasons proffered by
the prosecutor.
The first reason stated by the prosecutor was that, in her
questionnaire, Ms. Wilson-Rosa “did not indicate any thoughts or feelings one
way, or another about criminal justice system or about sexual assault, or how
sexual assault is handled in the criminal justice system,” which was “unusual
18
in this panel” but “not unique” and “made her answers in court more
important to [his] evaluation of whether [he] felt she would be a juror that
[he] would be comfortable with hearing this case.”13 Stancil contends that
this reason is presumptively invalid under section 231.7, subdivision (e)(13),
because Ms. Wilson-Rosa’s answers were similar to those given by other
jurors who expressed no opinion about the criminal justice system or sexual
assault cases. We disagree. Substantial evidence supports the application of
the trial court’s finding that there were a lot of distinctions between the
different jurors to the four jurors cited by his trial counsel, that is, “XXXXX
XXX” (Juror 1), “XXXX XXXXX” (Juror 5), “XXXXXX XXXXXX” (Juror 7), and
“XXXX XXXX” (Juror 11).
Jurors 5, 7, and 11 were distinguishable because, unlike Ms. Wilson-
Rosa, they expressed general opinions about the criminal justice system in
their questionnaires. Juror 5 wrote, “It is important and needs to be
impartial and above politics and partisan nonsense.”14 Juror 7 wrote,
“Sometimes it works and sometimes it does not.”15 (Capitalization omitted.)
13 Stancil contends that the prosecutor engaged in cursory questioning
of Ms. Wilson-Rosa and failed to question her about this reason. But, as to
this reason, the prosecutor asked: “You sort of didn’t have any strong feelings
about the criminal justice system or about how sexual assault crimes are
treated in the criminal justice system, at least you shared in your
questionnaire. As you’ve been sitting here listening to this discussion, has
anything stood out to you as maybe being particularly interesting or
something that you didn’t think about before that you thought would work
differently?”
14 In objecting to the peremptory challenge, Stancil’s trial counsel
incorrectly stated that Juror 5 did not have an opinion about the criminal
justice system.
15 In objecting to the peremptory challenge, Stancil’s trial counsel
incorrectly stated that Juror 7 had written “ ‘no opinion at this time’ ” when
19
Juror 11 wrote, “Generally fair, but could still be manipulated by attorneys
who can outsmart their opposite parties.” By contrast, in response to the
same question about her general opinions about the criminal justice system,
Ms. Wilson-Rosa wrote: “NONE.”
Juror 1 was distinguishable from Ms. Wilson-Rosa because of their
different responses to the question in the questionnaire about whether they
“feel that allegations of child molest [sic], rape, or any other sexual assault
should be treated differently from other crimes.” Ms. Wilson-Rosa answered,
“NO.” In contrast to Ms. Wilson-Rosa’s one-word answer, Juror 1 expressed
the view that some crimes should be treated differently. He wrote: “I have no
idea. I think all crimes should be treated case by case. Stealing a candy bar
is certainly different than murder, so in that case, yes I do think they should
be treated differently.”
The next reason stated by the prosecutor was that, when he questioned
Ms. Wilson-Rosa, she “did not express any thoughts or feelings” about the
controversial topics they had discussed, which “was unusual and . . .
indicated . . . a lack of emotional involvement or sort of a lack of engagement
with the questioning.”16 Stancil contends that this reason is presumptively
invalid under section 231.7, subdivision (g)(1), because the prosecutor relied
asked about the criminal justice system. (Capitalization omitted.) Rather,
that was Juror 7’s answer to a different question about what he thought
about how sexual assault cases are handled in the criminal justice system.
16 Stancil contends that the prosecutor engaged in cursory questioning
of Ms. Wilson-Rosa and failed to question her about this reason. But, as to
this reason, the prosecutor asked: “As you’ve been sitting here listening to
this discussion, has anything stood out to you as maybe being particularly
interesting or something that you didn’t think about before that you thought
would work differently?”
20
on Ms. Wilson-Rosa’s demeanor by noting her “lack of emotional
involvement.” We conclude that section 231.7, subdivision (g)(1), is
inapplicable because this reason was not based on Ms. Wilson-Rosa’s
demeanor. The prosecutor asked Ms. Wilson-Rosa if there was anything she
had “strong feelings about” as she was listening in the audience, and she
replied, “No.” He noted that she wrote in her questionnaire that she “didn’t
have any strong feelings about the criminal justice system or about how
sexual assault crimes are treated in the criminal justice system,” and asked if
“anything stood out to [her] as maybe being particularly interesting or
something that [she] didn’t think about before that [she] thought would work
differently” as she had been sitting there listening to the discussion, and she
replied, “No.” When the prosecutor later stated his reasons for exercising a
peremptory challenge on Ms. Wilson-Rosa, he explained that she “did not
express any thoughts or feelings” about the controversial topics they had
discussed, which “indicated . . . a lack of emotional involvement.” In
connection with this reason, he did not mention (and Stancil does not
identify) any behavior by Ms. Wilson-Rosa. The transcript reflects that this
reason was based on Ms. Wilson-Rosa’s answers rather than behavior that
the prosecutor observed; he inferred a “lack of emotional involvement” from
her answers of “No.”
The next reason stated by the prosecutor was that Ms. Wilson-Rosa
“wrote in her questionnaire that she did not believe kids lie about allegations
of sexual assault or rape” but “[w]hen she was asked about it by defense
counsel, she . . . very quickly switched her answer to, no, I think they would,”
which “indicated . . . that this juror could or would be swayed by defense
counsel” and “indicate[d] a lack of conviction in her beliefs about children and
about whether a child would make up something like this which, of course,
21
[was] the essential issue for this case.”17 Stancil contends that this reason is
presumptively invalid under section 231.7, subdivision (e)(13), because as his
trial counsel argued, Ms. Wilson-Rosa’s answers were similar to those given
by other jurors who changed their opinions about whether a child might lie.
We disagree. Substantial evidence supports the application of the trial
court’s finding that there were a lot of distinctions between the different
jurors to the three jurors cited by his trial counsel, that is, “XXXXXX
XXXXXXXX” (Juror 4),18 “XXXX XXXXX” (Juror 5), and “XXXXX XXX” (Juror
6).
Juror 5 was distinguishable because, unlike Ms. Wilson-Rosa, in the
questionnaire, Juror 5 answered that he believed a child would lie or make
up a charge of rape or sexual assault. Furthermore, during voir dire, he was
not asked about this belief and therefore did not change his answer. Ms.
Wilson-Rosa, on the other hand, changed her answer. When Stancil’s counsel
asked her how she felt about whether a child would make up a lie about
17 Stancil contends that the prosecutor engaged in cursory questioning
of Ms. Wilson-Rosa and failed to question her about this reason. But, as to
this reason, the prosecutor had no reason to ask Ms. Wilson-Rosa about her
answer in the questionnaire that she did not believe a child would lie or make
up a charge of rape or sexual assault (which was a belief he would want a
juror to have), and he had no reason to anticipate that she would
subsequently change her answer to: “No. I think they will lie. Yeah. I think
they will.”
18 Stancil refers to “XXXXXX XXXXXXXX,” but there was no juror by
that name; rather, there was a juror by the name of “XXXXXXX
XXXXXXXX.” We understand Stancil to be referring to Juror 4, based on his
gender, racial background, and matching information in the voir dire
testimony of “XXXXXXX XXXXXXXX” and Juror 4’s questionnaire answers,
including his city, place of birth, and job.
22
something like a rape or sexual assault, Ms. Wilson-Rosa stated, “No. I think
they will lie. Yeah. I think they will.”
Juror 4 was distinguishable because, unlike Ms. Wilson-Rosa, he did
not change his answer. In fact, during voir dire, Juror 4 was not even asked
about his questionnaire answer that he did not believe a child would lie or
make up a charge of rape or sexual assault.
Juror 6 was likewise distinguishable because, unlike Ms. Wilson-Rosa,
he did not change his answer. In the questionnaire, Juror 6 answered that he
did not believe a child would lie or make up a charge of rape or sexual assault
“if the child gave a detailed account.” (Capitalization omitted.) The
prosecutor noted that Juror 6 said that he probably does not think it’s likely a
kid would lie about something like this and asked if he would be able to judge
the case based on the evidence that’s presented. Juror 6 answered yes.
Defense counsel asked if Juror 6 would find the adolescent who is making the
allegation more credible because it does not seem like a young lady would lie
about a very serious accusation. Juror 6 answered, “I would put that aside
and listen to the evidence.” Thus, contrary to Stancil’s trial counsel’s
assertion, Juror 6 did not change his answer. He just said that he would put
his belief aside and judge the case based on the evidence.
The next reason provided by the prosecutor was that Ms. Wilson-Rosa
indicated that she didn’t have much experience with children (despite having
an older daughter) and therefore did not have much experience judging their
credibility, which was, as the prosecutor explained, the biggest factor in the
case.19 Stancil contends that this reason is presumptively invalid under
19 Stancil contends that the prosecutor engaged in cursory questioning
of Ms. Wilson-Rosa and failed to question her about this reason. But, even
though the prosecutor did not specifically ask Ms. Wilson-Rosa about her
23
section 231.7, subdivision (e)(13), because Ms. Wilson-Rosa’s answers were
similar to those given by other jurors who had no children, that is, “MR.
XXXX” (Juror 2), “MR. XXX” (Juror 6), “MR. XXXXXX” (Juror 10), and “MS.
XXXX XXXX” (Juror 11). Juror 2 is easily distinguishable because, in his
questionnaire, he answered that he has been in a position where he has had
prolonged repeated contact with children or adolescents and wrote that he
tutors kids in math. But, as to the other jurors, this is a fair point. As we
have noted, under section 231.7, subdivision (e)(13), a peremptory challenge
for “[a]ny justification that is similarly applicable to a questioned prospective
juror or jurors” is “presumed to be invalid unless the party exercising the
peremptory challenge can show by clear and convincing evidence that . . . the
reasons articulated bear on the prospective juror’s ability to be fair and
impartial in the case.” Here, the prosecutor explained how Ms. Wilson-Rosa’s
lack of “much experience with kids” and “much experience . . . judging their
credibility” bore on her ability to be fair and impartial. He stated, “It would
be harder for someone who didn’t have experience with children or identified
as not having close experience with children to judge the credibility of a child,
. . . which . . . is the biggest factor in this case.”
Even if we were to conclude this reason is presumptively invalid
because the prosecutor’s explanation does not suffice to show by clear and
experience with children, he asked: “Is there any question in your mind as to
whether you’d be able to evaluate the credibility of a child and determine
whether that or all of the evidence proves this case beyond a reasonable
doubt because of the allegations?” A reason to follow up on this question did
not materialize until later, when defense counsel questioned Ms. Wilson-Rosa
and she stated that a child will lie, which called into question how her lack of
experience with children affected whether she could evaluate the credibility
of a child witness.
24
convincing evidence that this reason bears on Ms. Wilson-Rosa’s ability to be
fair and impartial, it would not end our inquiry. “While reliance on an
invalid reason is generally a significant consideration—and, depending on the
circumstances, may prove dispositive—a court still must consider any other
reasons proffered and other relevant circumstances to determine whether the
strike was unlawful under section 231.7.” (SanMiguel, supra, 20 Cal.5th at
p. 269.) As we have discussed above, we have considered the other reasons
proffered by the prosecutor, including the prosecutor’s primary reason (her
expression of issues with the relevance of the prior offense), as well as the
other relevant circumstances, and none indicated bias. In light of the totality
of the circumstances, we conclude that the trial court did not err in denying
the objection to the prosecutor’s use of a peremptory challenge to remove Ms.
Wilson-Rosa.20
B. Unavailable Witness
Stancil contends that the trial court erred when it declared Anne Doe
unavailable and permitted her preliminary hearing testimony to be read into
the record, arguing this violated his constitutional rights to confrontation and
due process. Specifically, Stancil argues that the trial court did not comply
with its “duty to enforce the duty of a witnesses under subpoena to testify”
because the trial court told Anne Doe that she did not have to testify and that
she would not be punished if she did not.21 We disagree.
20 We note briefly that we are unconvinced by Stancil’s argument that
the trial court “applied the wrong standard” in denying the objection to the
peremptory challenge. Although the phrase “prima facie” is not a part of the
section 231.7 analysis, in context it is clear to us that the trial court was
applying the correct law.
21 In his opening brief, Stancil concedes that “[t]his case does not
present the question of the prosecutor’s due diligence.”
25
1. Additional Background
In 2005, Stancil was charged with committing lewd or lascivious acts
upon a child under the age of 14 years. The 11-year-old victim (referred to in
the trial court as Anne Doe) was Stancil’s stepdaughter. Anne Doe testified
at the preliminary hearing in that case in 2005 that Stancil asked her to rub
lotion on his “body part” (which she identified as his penis through a
diagram) and told her he would hurt her if she told anyone. Anne Doe was
scared and complied. Stancil then pushed her into the den and put her hands
on his “body part.” Stancil rubbed her breast under her bra and asked her to
rub his “B-A-L-L-S,” which she did.
In 2007, Stancil entered into a plea agreement and pleaded no contest
to a lesser included offense of sexual battery against Anne Doe (Pen. Code,
§ 243.4). He was sentenced to four years in prison.
In October 2023, Anne Doe received a letter from the prosecutor in the
present case and a subpoena ordering her to appear on November 6. After
she failed to appear in court, an investigator for the Alameda County District
Attorney’s Office called Anne Doe to tell her that a judge had ordered her to
appear on another date, that is November 30.
On November 14, 2023, the prosecutor filed a motion to admit evidence
of Stancil’s prior molestation of Anne Doe as propensity evidence under
Evidence Code section 1108, which motion was eventually granted after a
hearing.22
Anne Doe came to court on November 30. But, as the prosecutor
informed the trial judge, she refused to enter the courtroom or participate if
22 The motion also sought to admit evidence of Stancil’s prior
molestation of Anne Doe as evidence of a common plan or scheme, intent, and
lack of mistake under Evidence Code section 1101, subdivision (b).
26
Stancil was present. At the trial court’s request, the prosecutor explained
Anne Doe’s history with Stancil; he stated: “[She] has had a lot of trauma
surrounding this incident and was very upset with how the courts handled it
last time. She has indicated that she does not trust me to be truthful with
her because of how she was treated before. And that’s why she’s asking to
speak to the Court about her participation in this case.” The trial court
agreed to speak to Anne Doe in chambers in light of her “history with the
defendant” and “the trauma that she suffered and apparently continues to
suffer.”
In the presence of counsel but not Stancil, the trial court listened to
Anne Doe’s concerns. The trial court stated that she would have to enter the
courtroom to testify and explained that Stancil had “a right to face the people
who are making statements against him.” Anne Doe responded: “Then I don’t
think I’m going to be able to participate. I already went on stand and told my
side. You guys let him out.” “He got out.” “I don’t think I’m going to be able
to partake.” The trial court stated: “I can hear it in your voice, just . . . the
stress in . . . all of this. . . . [O]ne of the reasons that I allowed this hearing in
chambers is because of the trauma that you’ve experienced and you continue
to experience as a result of what happened to you when you were a young
child. . . . I just want to make sure that you’re really clear in terms of what
the expectations will be for you so that you can make an informed decision in
terms of how you want to proceed.”
Anne Doe asked if there would be “charges or anything” if she did not
testify. The trial court responded: “No.” “[T]he law has changed in many
respects. And so there can be no warrants or that kind of thing issued
against a victim of sexual assault who does not want to come back to court.”
“[I]n terms of the consequences of the subpoena for a witness like you who is
27
a victim of sexual assault, there’s no . . . arresting people on violating a
subpoena or not showing up. So it’s an understanding that you should have a
choice in terms of . . . whether or not emotionally you feel like you can do this.
[¶] And so it’s up to you. There’s not going to be anything that happens to
you if you decide you absolutely cannot be here.”
The prosecutor asked if there was anything they could do to get her to
agree to testify in this case. Anne Doe replied that she did not “want to have
to be around him” or see him or be in the same room with him. The
prosecutor asked, “Other than that, is there anything we could possibly do?”
Anne Doe replied: “Other than that, probably not. [¶] But I feel sorry for the
child that this happened to. . . . Because of the fact that he got out and [was]
able to do this again, the system failed. . . . [¶] But do I personally want to
have to go in there and be in the same room with him? No. He’s scum. And I
don’t want to be around . . . that.”
The prosecutor told Anne Doe he would see “if there’s any way that we
can try to accommodate you being in the room, but not having to see him or
interact with him in any way.” Anne Doe said she would “think on that” but
she did not think she wanted to be in the same room with Stancil.
After Anne Doe left, the trial court observed that Anne Doe had “some
very strong opinions” about being in the same room with Stancil but “she
didn’t necessarily say ‘absolutely not,’ ” so “there may be more conversation
with her.” Defense counsel stated: “She was informed that she can’t be
arrested or jailed for refusing to testify. She can be held in contempt and
fined under the statute.” The trial court stated: “I think Anne Doe has made
her position pretty clear . . . that she’s not necessarily amenable to making
herself available to testify. [¶] In terms of any contempt of court or fines or
anything like that, based on this record I can tell you that the Court would
28
not be fining her or finding her in contempt of court based on this record and
the statements that she made in chambers.”
The next day, the prosecutor filed a motion to admit Anne Doe’s
preliminary hearing testimony in the event that she continued to refuse to
testify on the ground that a sexual assault victim who refuses to testify at her
abuser’s trial is “unavailable as a witness,” so her prior testimony is
admissible under Evidence Code Section 1291.
At a hearing on the motion defense counsel objected that the trial court
should not have suggested to Anne Doe that it was her choice whether to
testify because that was not the “state of the law,” and the trial court should
have gone further. The trial court acknowledged it could hold Anne Doe in
contempt and fine her, but stated it couldn’t “force her to be retraumatized
and testify in this case.” “[T]he cases indicate that the Court cannot force
that person to testify . . . and the Court should look at whether or not those
efforts would even be fruitful. [¶] So do we continue to harm people when it’s
clear to us that our efforts would not be fruitful and our efforts are contrary
to what the case law states? . . . I don’t think so.” The trial court concluded
that defense counsel’s argument was “a semantical one and that the result
would be the same.” The trial court found that Anne Doe was an unavailable
witness under Evidence Code section 240 witness based on her statements,
and that her former testimony could be admitted under Evidence Code
section 1291.
At a hearing on December 19, the prosecutor called an inspector for the
Alameda County District Attorney’s Office as a witness to show that the
prosecution had “done everything that [it] [could] to secure Anne Doe’s
testimony.” The inspector testified that, during a phone call on December 11,
the prosecutor explained that the only way she could testify was if she came
29
into the same courtroom as Stancil. Anne Doe indicated that she did not
want to be in the same courtroom as Stancil. They again asked her to
participate, and Anne Doe said that she hadn’t made up her mind and needed
more time. On December 15, the investigator and the prosecutor again
contacted Anne Doe, and she still had not made a decision. Anne Doe said
that she was having anxiety over testifying. On the morning of December 18,
the investigator sent a text message to Anne Doe asking for an answer, but
Anne Doe did not respond. That night, the investigator called, and a woman
who sounded like Anne Doe answered, but the phone disconnected. The
investigator called back and left a voicemail asking her if she was willing to
testify and telling her that if they did not hear anything back from her, they
would take that as a no. He did not hear back from Anne Doe.
The trial court found that the prosecutor used due diligence in
attempting to get Anne Doe to court. The trial court concluded: “[B]ased on
the totality of all of the information that the court learned from . . . Anne Doe,
that due to the emotional trauma, concerns about her safety, concerns about
missing her work and not getting paid, . . . her anger with the District
Attorney’s office that . . . she was not treated as fairly as she should have
been in the previous case, and that . . . this resulted in yet another child
being placed in this situation . . . . [¶] . . . I do find . . . based on . . . this
record, that she is unavailable. And so, that’s why the court is going to allow
her preliminary examination transcript to be read into the record.”
2. Applicable Law and Standard of Review
“The confrontation clauses of the state and federal Constitutions
guarantee defendants the right to confront the witnesses against them.
[Citations.]” (People v. Wilson (2021) 11 Cal.5th 259, 289–290 (Wilson).) But
the right “is not absolute. [Citation.] If a witness is unavailable but had
30
previously testified against the defendant and was subject to cross-
examination at that time, that prior testimony may be admitted. [Citations.]
Evidence Code section 1291 codifies this exception to the confrontation
clauses.” (Id. at p. 290.)23 “[T]his exception permits an unavailable witness’s
preliminary hearing testimony to be admitted at trial.” (Ibid.)
A witness is unavailable if the witness is “[a]bsent from the hearing
and the court is unable to compel his or her attendance by its process” (Evid.
Code, § 240, subd. (a)(4)) or “[a]bsent from the hearing and the proponent of
his or her statement has exercised reasonable diligence but has been unable
to procure his or her attendance by the court’s process.” (Evid. Code, § 240,
subd. (a)(5).)
As our Supreme Court has stated, “[t]rial courts ‘do not have to take
extreme actions before making a finding of unavailability.’ [Citation.]”
(People v. Smith (2003) 30 Cal.4th 581, 624 (Smith).) For certain victims,
“the determination of reasonableness must take into account the import of
. . . section 1219, subdivision (b).” (People v. Lawson (2020) 52 Cal.App.5th
1121, 1128.) Under section 1219, subdivision (b), “a court shall not imprison
or otherwise confine or place in custody the victim of a sexual assault or
domestic violence crime for contempt if the contempt consists of refusing to
testify concerning that sexual assault or domestic violence crime.”
23 Evidence Code section 1291, subdivision (a), provides: “Evidence of
former testimony is not made inadmissible by the hearsay rule if the
declarant is unavailable as a witness and: [¶] (1) The former testimony is
offered against a person who offered it in evidence in his own behalf on the
former occasion or against the successor in interest of such person; or [¶] (2)
The party against whom the former testimony is offered was a party to the
action or proceeding in which the testimony was given and had the right and
opportunity to cross-examine the declarant with an interest and motive
similar to that which he has at the hearing.”
31
“We review de novo the trial court’s unavailability determination,
although we defer to the trial court’s determination of historical facts
supported by substantial evidence.” (Wilson, supra, 11 Cal.5th at p. 291.)
3. Analysis
Stancil argues that the trial court erred by making a finding of
unavailability without itself making “reasonable efforts” to obtain Anne Doe’s
testimony, and that it made “no effort to convince her to testify” contrary to
its “duty” under Smith. We disagree. In Smith, a rape victim who was
opposed to the death penalty stated that she would not testify during the
penalty phase unless she could express her views on the punishment the
defendant should receive. (Smith, supra, 30 Cal.4th at p. 621.) In
questioning outside the presence of the jury, the victim stated that potential
sanctions, including sanctions for criminal contempt, would not induce her to
testify, and the trial court found her unavailable as a witness. (Ibid.) On
appeal, the defendant contended that the trial court should have at least
fined the witness for contempt of court. (Id. at p. 624.) Rejecting that
argument, our Supreme Court concluded that the trial court did not actually
have to fine the victim because the trial court’s efforts to induce the victim to
testify were reasonable under the unusual circumstances of the case. (Ibid.)
Here, applying Smith, we conclude that the trial court’s efforts to
induce Anne Doe to testify were reasonable even though the trial court did
not threaten her with contempt and a fine. The trial court concluded it was
“clear” that Anne Doe was not going to be in the same room again as Stancil
and that further efforts would not be “fruitful.” These conclusions were
supported by the evidence. As the trial court took into account, Anne Doe
distrusted the process and the courts for “let[ting] him out” after she “went on
the stand and told [her] side.” The trial court observed first hand her
32
adamancy about not wanting to be in the same room with Stancil, personally
observed her stress and ongoing trauma, and was sensitive to “forcing her to
be retraumatized.” The court offered to accommodate Anne Doe as best as it
could by scheduling her testimony around her work and even asked whether
Anne Doe could be in the courtroom if she would not have to see Stancil.
Under these circumstances the trial court need not have attempted to induce
her to testify by threatening criminal contempt or a fine (which would have
been a bluff because the court found they would be fruitless) in order to find
her unavailable as a witness. Threatening criminal contempt or a fine would
have been extreme under the circumstances. (See Smith, supra, 30 Cal.4th
at p. 624 [“Trial courts ‘do not have to take extreme actions before making a
finding of unavailability.’ ”].)
In Lawson, supra, 52 Cal.App.5th 1121, a complaining witness (Jane
Doe 3) identified Lawson as the man who raped her but then did not hear
from the police again until eight years later when Lawson was arrested in
connection with the rapes of two other women. (Id. at p. 1125.) Jane Doe 3
testified at trial, and a mistrial was declared. (Ibid.) Jane Doe 3 then
refused to testify at the re-trial. (Ibid.) At a hearing in connection with the
re-trial, the trial court asked Jane Doe 3 if she would testify if ordered to do
so, and Jane Doe 3 answered no. (Id. at p. 1126.) “Jane Doe 3 understood
that it was ‘within [the court’s] discretion to find [her] in contempt of court for
not testifying, and as a result, to fine [her] a maximum of $1,000.’ ” (Id. at p.
1127.) The trial court declined to find Jane Doe 3 in contempt of court, found
Jane Doe 3 unavailable as a witness, and admitted her testimony from the
preliminary hearing and the first trial. (Id. at pp. 1125, 1127.) Rejecting
Lawson’s argument on appeal that the trial court could have imposed a fine
or done more to persuade Jane Doe 3 to testify, our colleagues in Division
33
Three noted that the trial court had “observed Jane Doe 3’s demeanor, affect,
and listened to her responses,” considered “her apparent resolve,” and found
that there was nothing further it could do to coerce her testimony, and our
colleagues concluded that, “[i]n the circumstances, a finding of contempt
would be a symbolic gesture and without practical impact.” (Id. at p. 1130.)
Here, we reach a similar conclusion; although the trial court could have
threatened Anne Doe with criminal contempt and a fine, in these particular
circumstances, it would have been a symbolic gesture without practical
impact.
C. Expert Testimony
Stancil asserts that the trial court abused its discretion under Evidence
Code section 720 in not permitting Daniel Olmos, an experienced practicing
criminal defense attorney who had not met Stancil and did not know the
specifics of his case, to “discuss the literature” showing that people plead
guilty to crimes they did not commit. Although Olmos was permitted to
testify about plea bargaining, including how it works, why criminal
defendants plead guilty, and whether people plead guilty who nonetheless
deny the allegations, the trial court did not permit Olmos (who was not a
sociologist or social scientist and had never been qualified as an expert, let
alone testified at trial) to testify about the contents of articles he had merely
read but did not participate in writing. We find no error.
1. Additional Background
Stancil testified on his own behalf, including about his prior criminal
record and the various plea agreements he had previously entered into.
Stancil admitted, for example, he took a plea deal for a robbery in 1989
“ ‘cause I did it,” and another in 2015 for vehicle theft because “I was guilty,”
but denied committing the charged crime against Anne Doe; he claimed he
34
took the plea deal due to “inequity and injustice within the criminal justice
system” and because he faced “life in prison” if convicted and the plea
agreement would allow him to “go home.”
After Stancil testified, his attorney called Olmos and sought to qualify
him as an expert in the area of plea bargaining. Stancil’s attorney
established that Olmos’s legal experience included clerkships for two federal
judges, a year in the public defender’s office, three years at a law firm, and
two years at the United States Department of Justice, where he did “policy
work” that was not particularly related to plea bargaining. Olmos then
worked in the White House for 10 months to increase funding and access to
quality representation; his “portfolio” did not include plea bargaining. In the
10 years that followed, Olmos practiced criminal defense as a partner at a
law firm. He has taken plea deals in hundreds of cases. He has reviewed
research articles on plea bargaining to inform his work as a policy advisor
and a practitioner, but he has never participated in any research or
conducted any scientific experiments on plea bargaining, nor, as noted, had
he ever been offered as an expert witness or testified in court.
After hearing this testimony, the court (outside the presence of the
jury) heard arguments from counsel. The trial court expressed its “concerns
. . . based on the extent of [Olmos’s] education, training and experience,
specifically with the area of plea bargaining.” The court acknowledged that
although Olmos knew about plea bargains because he is a criminal defense
lawyer, “[t]he issue of plea bargaining . . . has not been the primary focus of
his work.” The trial court observed that “[a]ll of the information that he has
with regard to the . . . studies that have been done with regard to plea
bargaining are based on articles he’s read . . . . [H]e has not himself been
involved in any of the science or studies that produced those articles.” The
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trial court noted that Olmos had never been asked to testify as an expert in
this field and that the court was “expecting the witness to have more
experience . . . in the production and the scientific development of arguments
with regard to plea bargain[s], not just somebody who’s read the articles.”
The trial court stated: “If you ask this witness specific information in terms of
why certain conclusions were reached by the people who prepared . . . the
scientific reports, he would be speculating about why . . . those conclusions
were reached. He can’t speak to that because he was not involved in that.”
The trial court then allowed counsel to voir dire Olmos further outside
the presence of the jury. Olmos admitted he was “not a trained sociologist or
scientist” and could “speak to the methodology [of studies] only inasmuch as
it’s reported in the studies themselves.” In particular, Olmos stated that he
could not “speak to the scientific bases . . . or the justifications” for the study
on innocent people pleading guilty titled “Pleading Innocents – Laboratory
Evidence of Plea Bargaining’s Innocence Problem.”
After this additional voir dire, the trial court asked defense counsel if
there was “some other limited area that this witness may be able to speak to
that does not entail him basically . . . regurgitating scientific papers,
sociology that he’s read.” Ultimately, the trial court concluded: “I’m not going
to find that this witness is an expert to testify as to plea bargaining as an
expert. I will allow you to ask additional questions, but I’m going to limit the
questioning.” “He can’t speak to the research other than he’s read it.”
When the jury returned, defense counsel resumed her questioning of
Olmos, who testified that it was “far more likely” for defendants to plead
guilty rather than go to trial, the “overriding concern” for the “vast majority”
of Olmos’s clients was the “potential risk in going to trial in terms of a
possible penalty,” and Olmos’s clients had expressed more hesitation about
36
going to trial when they faced a significant sentence. Defense counsel asked
whether Olmos had “ever seen people plead guilty who deny the allegations
against them,” to which Olmos testified yes.
The next day Stancil’s counsel made a record outside the jury’s
presence of “some studies” that Olmos would have “been able to talk about”
had he been allowed to testify as an expert.24
After the trial court’s ruling, the jury heard about Olmos’s experience
with plea bargaining, and defense counsel relied on Olmos’s testimony in
closing argument to refute Stancil’s no contest plea in the Anne Doe case.25
24 Stancil’s counsel stated that had Olmos been allowed to testify as an
expert, “he would have been able to talk about studies . . . including some
studies by the Innocence Project that look at . . . [the] number of exonerations
of people who have taken guilty pleas and . . . why those statistics most likely
under-report given that the exonerations are based on DNA evidence . . . .
And he also would have been able to talk about a number of studies that were
more like lab studies . . . where . . . participants were placed in an innocent or
guilty category and had to make decisions about whether to accept . . . a plea
deal and how factors like the length of time . . . or . . . the consequences they
would have been facing drastically affected the decisions they made and how
. . . those studies demonstrate the pressures that people face. So while he
was able to talk about . . . his experience very generally, I think he was not
able to talk about these studies that show that . . . statistically this is proven.
And I think that data on the exonerations after people plead guilty and
exonerations based on DNA evidence, that’s very strong evidence that this
really does happen.” (Italics added.)
25 Defense counsel argued that “as Mr. Olmos tells you, as your common
sense will tell you” it is “not an unreasonable decision” to take a plea offer in
the face of a life sentence. And later, “But you’ve heard a conviction . . .
doesn’t necessarily mean that you’ve actually committed a crime. You can
plead guilty or no contest even if you’re innocent. [¶] You heard Mr. Olmos
talk about how he has clients all the time who deny accusations against
them, who deny the charges that they’re facing. But at the end of the day,
they take a deal. [¶] Mr. Olmos talked to you about the pressures that his
clients are facing. He talked to you about the ways his client[s] feel when
they’re facing a significant sentence and then they get an offer that let[s]
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2. Analysis
Under Evidence Code section 720, subdivision (a), a “person is qualified
to testify as an expert if he has special knowledge, skill, experience, training,
or education sufficient to qualify him as an expert on the subject to which his
testimony relates.” “The trial court has broad discretion in deciding whether
to admit or exclude expert testimony [citation], and its decision as to whether
expert testimony meets the standard for admissibility is subject to review for
abuse of discretion.” (People v. McDowell (2012) 54 Cal.4th 395, 426
(McDowell).) “[A] trial court does not abuse its discretion unless its decision
is so irrational or arbitrary that no reasonable person could agree with it.’
[Citation.]” (Id. at p. 430.)
Stancil contends that the trial court erred by refusing to qualify Olmos
as an expert on plea bargaining and thereby preventing him from relating
findings of studies that significant numbers of innocent people plead guilty,
which would have corroborated Stancil’s testimony that he previously pled no
contest to sexual battery for reasons besides being guilty. We disagree.
Other than his experience negotiating plea agreements for his own clients
(about which he was permitted to testify), plea bargaining had not been a
particular focus of his work. Olmos did not claim to have had any specific
training or education on plea bargaining and had never testified in court at
all, let alone as an expert on any subject. On this record, we cannot say the
court’s decision not to permit Olmos to testify as an expert on plea bargaining
them out of jail. He talked to you about how eager his clients are to get out of
custody. He talked to you about how his clients want to do anything to avoid
a lengthy prison sentence.” In discussing the plea offer that Stancil took in
the Anne Doe case, Stancil’s counsel also referred to what “Mr. Olmos told
you” about how plea offers are negotiated. (Italics added.)
38
was so irrational or arbitrary that no person could reasonably agree with it.
(See McDowell, supra, 54 Cal.4th at p. 430.)
DISPOSITION
The judgment is affirmed.
_________________________
Miller, J.*
WE CONCUR:
_________________________
Stewart, P. J.
_________________________
Desautels, J.
A170563, People v. Stancil
* Retired Associate Justice of the Court of Appeal, First Appellate
District, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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